Kua v Wensti [2004] PGNC 15; N2772 (21 October 2004)

N2772

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 559 OF 2004

JOE KUA
Plaintiff

AND

JOHN WENSTI
First Defendant

AND

PHILIP KAMBU
Second Defendant

Kundiawa : Lay, J
2004: 19th and 21st October

Local-Level Governments Administration (Amendment) Act 2004 s12 – Statutory Interpretation - Interpretation Act s63 – repeal of ‘no confidence’ vote provision in respect of President of Local Level Government – whether motion of no confidence presented before repeal could be moved after repeal of s12(3)(c) and s.12(4) and 12(5).

Facts:

On 23rd July 2004 a motion of no confidence was presented by the Defendants against the Plaintiff who is the President of the Kumai-Bomai Local Level Government. Various procedural issues arose which delayed moving of the motion on the floor of the Local Level Government chamber. On 9th August 2004 an amendment to s12 of the Local-Level Governments Administration (Amendment) Act came into force. The amendment repealed the parts of s12 permitting votes of no confidence in Presidents of Local Level Governments. The Defendants sought to move the motion at a Local Level Government meeting on 7th October 2004. An interim injunction was granted on 6th October 2004 preventing the motion from being moved until the Plaintiff’s summons before this Court was heard for a declaration that the motion to remove the President was illegal.

Held:

The motion to remove the President was still current at 9th August when the part repeal of s12 of the Local-Level Governments Administration (Amendment) Act came into force. The Defendants had not acquired a right within the meaning of s63 of the Interpretation Act by reason of presenting the motion. Such a right must be one which merely has to be particularized or quantified or developed in order to be enforced; but which had already been acquired and the essential nature of which remained unchanged after that further process. The entitlement acquired by the Defendants was to put in train a process by which the mere possibility of acquiring a right would be investigated. It was therefore a right which did not survive the repeal of the right to present a motion of no confidence in the Local Level Government President. The motion was therefore illegal. S12(3)(c) and s12(4) and 12(5) of the Local-Level Governments Administration (Amendment) Act together with Part VI of the Standing Orders made under the Act were repealed for all purposes on 9th August 2004.

Cases Cited:
SCR No 4/85 Ogero v Police[1]
Woodhall Limited v Chief collector of Taxes[2]
Free Lanka Insurance Co. Ltd. v. Ranasinghe4
Telepage Pty Ltd v Post and Telecommunications Corporation[3]

Counsel:
Mr. Gendua for the Plaintiff
Mr. Tamagle for the Defendants

LAY J.: These proceedings were commenced by Originating summons for a declaration that the Motion of No Confidence proposed to be moved against the Plaintiff on 7th October 2004 to remove him as President of the Kumai-Bomai Local Level Government ("the KB-LLG"), is illegal.

The proceedings first came before me on 6th October 2004 and I granted an injunction ex parte to prevent the Motion of No confidence from proceeding The order was made returnable on 19th when the substantive issue was argued.

On 23rd July 2004 the Respondents proposed a Motion of No confidence in the Plaintiff as President of the KB-LLG. It was served on the Chief Executive Officer ("CEO")'on 26th July. The CEO served the Plaintiff on 11th August 2004. On 16th August the Provincial Local Level Government Officer ("PLLGO") ruled the motion to be defective because it did not contain the date on which the CEO had been served, preventing the PLLGO from verifying whether or not 14 days notice had been given. The motion was apparently served again, this time with the last page endorsed "This notice is dated this 26th day of July 2004." The CEO appointed 9th September 2004 for the motion to be heard. On that day the PLLGO asked for an adjournment which was granted to 22nd September 2004. On that day the Plaintiff claimed not to have received the amended motion. The PLLGO, as chairman, granted another 14 day adjournment and ruled that the CEO serve the Plaintiff on the floor of the chamber. A copy of the Notice of Motion of No confidence was then served on the Plaintiff. The first page of that Notice is dated 23rd July 2004, the second page is undated and the third page is endorsed "This Notice is dated this 22nd day of September 2004". The Notice of the Motion was served on the President and Councillors under cover of a letter from the A/CEO in which he quite clearly considered the motion to be the same one with which he was served on 26th July 2004. 7th October 2004 was the adjourned date of the meeting for hearing the Motion. That meeting was restrained from hearing the Motion, by this Court.

Submissions

The Plaintiff submitted that the Motion of No Confidence is illegal, because the law which gives power to put motions of no confidence has been repealed by amendment to the Local-Level Governments Administration (Amendment) Act 2004 made by the National Parliament on 1 July 2004 and certified by the Speaker on 9th August 2004. The Motion first put was ruled out of order on 24th August 2004, so that the whole process would have to be commenced again. But by then the amendment had come into force and it was no longer possible to put such a motion. He referred to a passage from SCR No 4/85 Ogero v Police[4] and further submitted that no action of any sort could be entertained when the law has been repealed. As to the Standing Orders which set out the procedures for motions of no confidence he submitted these were no longer relevant.

Counsel for the Respondents conceded that if the Court found the Motion of No confidence was not current at 9th August 2004 his clients could not succeed. He submitted that the original motion was still current at that date because it had never been argued. He submitted that the repeal is not retrospective and so what was commenced before its passage is still current and on foot. Counsel was unable to refer me to any authority for this proposition. During submissions I raised with Counsel that the only authority which I could recall, which may assist the Respondents, was s63 of the Interpretation Act.

The Law

The Interpretation Act s63 provides:

63. Effect of repeal.

(1) The repeal of a provision does not—

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or

(c) affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or

(d) affect any penalty, forfeiture, or punishment incurred in respect of an offence committed against the repealed provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,

and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture, or punishment may be imposed, as if the repeal had not been made.

(2) The repeal of a statutory provision that validated or continued in force any act, matter or thing does not affect the validation or continuance.

In Woodhall Limited v Chief Collector of Taxes[5] the Court referred to a number of overseas authorities to assist in the interpretation of the provision (then s44) as follows:

"A number of authorities were referred to in argument concerning statutory provisions corresponding with s. 44 (c). The authorities draw the distinction between what is really a right accrued and what is no more than a mere hope or expectation that a right will come into existence. It was stated in the judgment of the Judicial Committee in Director of Public Works v. Ho Po Sang[6] that:

"It may be, therefore, that under some repealed enactment a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act."

The statement was cited with approval in Free Lanka Insurance Co. Ltd. v. Ranasinghe[7]."

And in the same case a passage from Free Lanka Insurance Co. Ltd. v. Ranasinghe4 was quoted:

"The Board respectfully agrees with the Supreme Court in thinking that the respondent had, on September 1, 1951, ‘acquired a right’ against the appellants within the meaning of par. (b) of that subsection. The attention of their Lordships was drawn to a number of cases, including those referred to in the judgment of Gunasekara J in the Ceylon Supreme Court and including also the case in the House of Lords of Central Electricity Board v. Halifax Corporation ([1963] A.C. 785). The distinction between what is and what is not ‘a right’ must often be one of great fineness. But their Lordships agree with Gunasekara J in thinking that on September 1, 1951, the respondent had as against the appellants something more than a mere hope or expectation — that he had in truth a right, within the contemplation of section 6 (3) (b) of the Interpretation Ordinance, under section 133 of the Ordinance of 1938 although that right might fairly be called inchoate or contingent. In Director of Public Works v. Ho Po Sang ([1961] A.C. 901) the Board was concerned with an analogous problem under the language (closely approximating to that of the Ceylon Interpretation Ordinance) of the Interpretation Ordinance of Hong Kong. Their Lordships are well content to accept and adopt the language used by Lord Morris of Borth-y-Gest in the judgment of the Board in that case ([1961] A.C. 901, 922): ‘It may be ... that ... a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected or preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.’ In the present case, as it seems to the Board, the appellants cannot now be heard to say that the respondent was not immediately after the accident an injured third party entitled to recover damages against Appuhamy and, as they think, his service upon the appellants of the notice of his claim (together with a copy of his plaint) pursuant to section 134 of the 1938 Ordinance was an assertion by him of his statutory right against the appellants; and nonetheless effectively so because the quantum of his claim was dependent upon the finding of the court in a decree made in his favour in his action against Appuhamy."

On the question of what happens to regulations and by-laws made under a repealed provision, the under mentioned passages from overseas authorities were referred to and applied in Telepage Pty Ltd v Post and Telecommunications Corporation[8]

"The law relating to repeal of regulations by virtue of repeal of the Acts which enables the regulations to be made can be found in the judgment of Lord Reading CJ in Watson v Vince [1916] 1 KB 688 at 690. The issue was put by Lord Reading in these terms:

"Upon these facts a questions arises which has not been decided by any Court, namely, whether the repeal of an Act which enabled a corporation to make bylaws, involving as it does to the revocation of the power of the corporation to make them, has the effect of repealing bylaws already made under the power while it existed, or whether the bylaws remain in force notwithstanding the repeal of the statute under which they were made. The question is one of general importance, and argument on behalf of the defendant makes us regret that the respondent was not represented...it was said in Surtees v Elison (1):

‘It has been long established that when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed,) as if it had never existed. That is the general rule; and we must not destroy that, by indulging conjecture as to the intention of the legislature).’

To that passage it is only necessary to make one qualification, namely, that since that case, Lord Brougham’s Act (13 and 14 Vict. c. 21) and the Interpretation Act 1889, have been passed, and one must now bear the later Act in mind. It would follow that any bylaw made under a repealed statute ceases to have any validity unless the repealing Act contains some provision preserving the validity of the bylaw notwithstanding the repeal. Applying that principle to this case, it follows that the bylaws made under the Norwich Improvement Act, 1879, have no longer any validity and that the conviction must be quashed."

The above quoted passage from Surtees v Elison is the same passage relied upon by Counsel for the Plaintiff.

The relevant part of s12 of the Local Level Government Administration Act ("the Act") is as follows:

(3) The head of a Local-level Government elected under Subsection (1)(b) vacates office where—

(a) he ceases to be an elected member; or

(b) he is dismissed from office under Section 9 or 10; or

(c) he is dismissed from office if the Local-level Government, by a two thirds absolute majority (including the appointed members), passes a motion of no confidence in him in accordance with this section.

(4) A motion of no confidence referred to in Subsection (3)(c)—

(a) is a motion—

(i) that is expressed to be a motion of no confidence in the head of the Local-level Government; and

(ii) of which not less than 14 days' notice, signed by a number of members of the Local-level Government, being not less than one quarter of the total number of members of the Local-level Government, has been given in accordance with the Standing Orders of the Local-level Government; and

(iii) nominates another member of the Local-level Government, who is eligible to be elected head of the Local-level Government, to be the next head of the Local-level Government; and

(b) may not be moved—

(i) during the period of 18 months following the election of the head of the Local-level Government; or

(ii) during the period of six months before the fifth anniversary of the date fixed for the return of the writs of the previous general election of members of Local-level Governments.

(5) The procedures for a motion of no confidence referred to in Subsection (3)(c) shall be as set out in the Standing Orders of the Local-level Government.

Those parts of the Section in italics are the parts repealed on 9th August 2004 by the Local Level Governments Administration (Amendment) Act 2004.

The Standing Orders provide that the motion must comply with s12(4) & (5) of the Act, be served on the CEO and a copy given to each Councillor at least 10 days before the date proposed for considering the motion and that a motion may not be amended except by substituting the name of the alternate President.

Issues

There are three issues to be decided:

1. Was there a current motion on foot on 9th August 2004?, and if so,
2. Had the Defendants abandoned that Motion by serving another dated 22nd September 2004?; and if not,
3. Had the Defendants acquired a right by virtue of the un-argued motion which they are entitled to keep and have moved and argued pursuant to the provisions of s63 of the Interpretation Act?
   

I find that the motion dated on the front page 23rd July 2004 and on the third page 26th July 2004 is in proper form and complies with the requirements of the Act and the Standing Orders as to form. In my opinion the PLLGO was wrong to reject the motion on the basis that it did not contain the date of presentation to the CEO. Neither the Act nor the Standing Orders requires that date to be in the body of the motion. It was a fact which the PLLGO could ascertain in whatever manner he considered satisfactory. The motion had been served on the CEO on the 26th July 2004 as he later acknowledged. I therefore find that that on the 9th August 2004 there was a valid motion.

No motion of no confidence in the President presented after 9th August 2004 could have any standing at all. I therefore find that the service of the motion dated 22nd September 2004 did not have the effect of abandoning the motion dated 26th July 2004. Further having carefully compared that document with the motion dated 26th July 2004 I can find no material difference in them. I can see no explanation for the reference in the Minutes of the KB-LLG to an amended motion. I find that the intention in endorsing the date on the last page was to indicate the date of service.

AS to whether the Defendants acquired a right by virtue of the un-argued motion which they are entitled to keep and have argued pursuant to the provisions of s63 of the Interpretation Act; one needs to examine the scheme of the Act and the Standing Orders. Firstly the Act stipulates the formal requirements of the motion and secondly the Standing Orders stipulate the steps to be taken once the motion has been prepared in accordance with the requirements of the Act.

In this case the Defendants prepared the motion in accordance with the requirements of s12 of the Local Level Government Administration Act and took the step required of the mover of the motion, namely serve it on the CEO. In my view the mover and seconder of the motion then acquired an entitlement to have that motion presented for deliberation by the Local Level Government. All the other steps to be taken were administrative steps to be taken by the CEO or PLLGO. However, that entitlement was no higher than an entitlement to have investigated or put to the vote, whether a right might vest in some other person to take the position of President. It was not a right acquired which merely had to be particularized or quantified or developed in order to be enforced; but which had already been acquired and the essential nature of which remained unchanged after that further process. To put it another way, the entitlement acquired by the Defendants was to put in train a process by which the mere possibility of acquiring a right would be determined. Or in the words of Lord Borthy-Guest quoted above "an investigation which is to decide whether some right should or should not be given.".

I therefore find that s63 of the Interpretation Act did not preserve the right to continue to move the motion of no confidence. S12(3)(c) and s12(4) and (5) were repealed for all purposes on 9th August 2004 and with them Part V1 of the Standing Orders.

I declare that the Motion of No confidence to be moved against the Plaintiff to remove him as the President of Kumai-Bomai Local Level Government is illegal.

Lawyers:
For the Plaintiff : Gendua Lawyers
For the Respondents : Wal & Company Lawyers

---

^[1] [1985] PNGLR 320 @ 322
^[2] [1975] PNGLR 175 Frost CJ Prentice SPJ and Williams J per Williams J
^[3] N605 per Kapi DCJ
^[4] [1985] PNGLR 320 @ 322
^[5] [1975] PNGLR 175 Frost CJ Prentice SPJ and Williams J per Williams J
^[6] [1961] UKPC 22; [1961] A.C. 901 @ 922
^[7] [1964] A.C. 541 @ 552
^[8] N605 per Kapi DCJ